KB-2024-000054 - [2025] EWHC 2733 (KB)

Application to strike out the defendant’s hearsay notice

The defendant served a hearsay notice pursuant to s.2 of the Civil Evidence Act 1995 and CPR 33.2. The “witness” is identified in the hearsay notice as Jason Gilchrist, and the defendant has referred to the document as Mr Gilchrist’s witness statement. In fact, the hearsay notice contains the defendant’s evidence regarding matters that he says were conveyed directly to him by Mr Gilchrist between 2021 and 2023. The hearsay notice has been written by the defendant and it is signed (with a statement of truth) by him. It was duly filed in time and no objection is taken to the form of the hearsay notice.

The claimant’s objection to the defendant giving this evidence is not that it is hearsay (which goes to weight) but that it is irrelevant to the issues raised by the pleadings.

In the Hearsay Notice itself, the defendant identifies that this hearsay evidence is relevant to counterclaims for misuse of private information, for defamation and for conspiracy to injure by unlawful means (paras 3.2, 3.3 and 3.4). As the defendant has no such counterclaims, those reasons for contending that the evidence is relevant all fall away. The remaining two reasons relied on by the defendant for saying the evidence is relevant are in the following terms:

“3.1

Defence to the Claimants’ Allegation of Harassment

•

Demonstrates that the Defendant’s communications were reactive and proportionate, responding to an ongoing campaign of reputational harm and private intrusion.

•

Shows that the Claimants and their associates made false, damaging statements to employees and third parties about the Defendant’s mental health and credibility.

•

Provides contemporaneous context to the Defendant’s conduct – namely, that it was motivated by exposure to retaliatory treatment, not malice.

…

3.5

Whistleblower Victimisation and Protected Disclosures

•

Mr Howard’s direct threats – conditional on the Defendant ceasing LinkedIn disclosures – clearly demonstrate retaliation against protected disclosures.

•

Shows that the Defendant was targeted specifically for raising concerns about fraud, regulatory non-compliance, and misconduct – matters qualifying under section 43B of the Employment Rights Act 1996.

•

The evidence supports the Defendant’s contention that his treatment by the Claimants constitutes whistleblower detriment, both during and after the employment relationship.”

Part A (paragraphs 2.1-2.4) of the Hearsay Notice addresses disclosure of the defendant’s HIV status. That is an issue which was raised by the defendant’s proposed counterclaim for misuse of private information but, as I have said when addressing the application to strike out part 11 of the defendant’s witness statement, he has no such counterclaim. Nor any positive pleaded case in response to the contract claim to which this matter could be of any relevance. The nature of the defence to the harassment claim, as identified above, is such that this part of the Hearsay Notice is wholly irrelevant to the pleaded issues. It is clear from the Hearsay Notice that the defendant sought to adduce this evidence at a time when he hoped to be able to bring a counterclaim for misuse of private information, and that is the only reason for contending it is relevant. As that has fallen away, Part A is irrelevant.

Part B (paragraphs 2.5-2.6) of the Hearsay Notice concerns alleged defamatory statements, said to have been made about the defendant by the first claimant’s employees. It is said these statements were part of a coordinated campaign to undermine his credibility, suppress discussion of his whistleblowing activity and discourage staff from supporting or corroborating his disclosures. The primary reason given in the Hearsay Notice for contending this evidence is relevant was that it goes to a counterclaim for defamation. That reason has fallen away: there is no such counterclaim. This evidence is obviously irrelevant to the pleaded issues in the contract claim. It is plainly of no relevance to the question whether the course of conduct constituted harassment, nor to the s.1(3)(a) defence. The only real question is whether it is conceivably of any relevance to that part of the s.1(3)(c) defence by which the defendant contends that his conduct was reasonable because it was designed to encourage whistleblowers to come forward. But even applying the same generous approach to striking out as I have identified in respect of the defendant’s own statement, this evidence says nothing about the defendant’s purpose in pursuing his course of conduct. Therefore, Part B also falls to be struck out as irrelevant.

Part C addresses three alleged telephone conversations between Mr Howard and Mr Gilchrist in which Mr Howard is said to have made admissions about the claimants’ “conduct and strategic intent”. Paragraphs 2.8 to 2.12, concerning the first two calls, are of no relevance to the pleaded issues, as I have identified them above. Paragraphs 2.13 to 2.17 address the third telephone conversation in which Mr Howard is said to have addressed “the ongoing criminal investigation involving Mr Louis Fordham’s daughter”. I consider that these five paragraphs of Part C may be relevant to the pleaded issues, the focus of the Amended Defence on alleged criminal activity and investigations, of which this may be part. Accordingly, paragraphs 2.8-2.12 of Part C fall to be strike out but I will refrain from striking out paragraphs 2.7 or 2.13 to 2.17.

The remainder of the Hearsay Notice addresses relevance, weight and procedural compliance. It does not contain any evidence and so, in circumstances where the defendant may rely at trial on part of the evidence he has given in the Hearsay Notice, there is no need for any part of his submissions regarding that evidence to be struck out.

Accordingly, I will make an order striking out Part A (paragraphs 2.1-.24), Part B (paragraphs 2.5-2.6) and, within Part C, paragraphs 2.8-2.12.